E.C. v. Ontario (Minister of Health and Long Term Care), 2015 HRTO 917

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.C. Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care Respondent

INTERIM DECISION

Adjudicator: David Muir Date: July 13, 2015 Citation: 2015 HRTO 917 Indexed as: E.C. v. Ontario (Minister of Health and Long Term Care)

1This Application alleges discrimination with respect to the provision of goods and services because of sex, sexual orientation, gender identity and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The central allegation is that the requirement of a recommendation from the Centre for Addiction and Mental Health in order to receive OHIP funding for sex reassignment surgery is discriminatory.

2The parties have each filed Requests for Order During Proceeding.

ANONYMIZATION

3The applicant seeks anonnymization. The respondent takes no position.

4Under Rule 3.11 of the Tribunal’s Rules of Procedure, the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal has invoked Rule 3.11 as the basis upon which to anonymize parties in proceedings before it.

5The Tribunal’s Practice Direction on Anonymization of HRTO Decisions provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so. However, such an order is only made in exceptional circumstances. When determining whether to make an anonymization order, the Tribunal’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

6The Tribunal does not grant anonymization in all cases where someone alleges that they have a private and sensitive medical condition or where they are seeking medical services they claim to be private and sensitive. However, the Tribunal has granted requests for anonymization where it is persuaded that the proceeding deals with medical information or medical services that are particularly private and sensitive due to the social stigma attached to them.

7Due to potential stigma relating to the medical service at issue in this case and also the respondent’s position, I find that is is appropriate to use initials instead of the applicant’s name in this proceeding.

THE PROPER PARTIES TO THIS APPLICATION

8The applicant has identified three individual Ministries as respondents in this Application and has also requested that the three Ministers be in attendance at any mediation or hearing. The respondent has requested that two of the three Ministries initially identified, the Ministry of the Attorney-General and the Premier, be removed from the Application.

9I agree with the respondent that it is unnecessary that three Ministries be named as parties to this Application. There is really one respondent in this case – the Crown in Right of Ontario as represented by the Ministry of Health and Long Term Care.

10The applicant argues that this is a landmark case and although the applicant agrees that the “original specific” complaint relates to a decision of the Ministry of Health, that decision is the culmination of decades old policies of the Ministry of Health. The applicant argues that the participation of all three Ministries is important to the resolution of this case because it may affect “all members of her class and to some extent the wider society in which she and her peers are members”. The applicant also states that there must be adequate and complete representation of the general public interest in order to achieve a full resolution.

11The allegation in the Application relates to a decision made by the Ministry of Health. The Crown in Right of Ontario is in fact the respondent and is adequately represented for all purposes by the Ministry of Health. There is really no basis to the applicant’s position that two other Ministries’ need be separately identified as parties in order to ensure that the public interest is adequately engaged. Ultimately, the question is whether it is necessary to the fair just and expeditious adjudication of this Application that three Ministries be identified as separate parties where it is the decision, policies and regulations of one Ministry that is in issue. In my view it is not necessary and the two other Ministries identified are removed and the style of cause amended accordingly.

12Similarly I am not satisfied that it is necessary, or that I have any authority to require the attendance of the Ministers at any mediation or hearing that is held. The applicant provided no authority in support of what can only be described as an extraordinary request. The Tribunal’s Rule 15.3 requires only that a person with authority to resolve the dispute be present at mediation. I agree with the respondent that the Crown will be represented by counsel and the party to the proceeding is entitled to send whomever they wish to instruct counsel.

MEDIATION

13Since filing her Application, the applicant filed a Request seeking to amend the Application to indicate that she was agreeable to attending mediation. However, the applicant has indicated that if a settlement is achieved she would seek to have it reviewed by the Tribunal. The Tribunal does not review the settlement agreements of the parties. It has on rare occasion issued a consent Order capturing the agreement of the parties but it does not review the proposed Order for conformity with the Code.

14This case will proceed to the next step in the Tribunal process. As the parties have agreed to mediation the Registrar will schedule a half day mediation in due course.

ORDER

15The Tribunal makes the following Orders:

a. The name of the applicant is anonymized as set out above;

b. The Ministry of the Attorney General and the Premier are removed from the Application and the style of cause amended accordingly.

16I am not seized.